because there is no law prohibiting it. In Italy, by the law of July 11, 1904, No. 167, the coasting trade is reserved to the national flag, provided no special conventions or treaties stipulate otherwise. Compare: Oppenheim, International Law, v. I, §§187–188.

270. The State has the right to regulate transit in territorial waters in order to provide for the necessities of its defense and to protect its fishing interests and to prohibit the transportation of certain goods (arms, ammunition, alcohol, etc.) and in general any transportation which may be suspected of violating the customs laws. It may, therefore, subject foreign vessels entering territorial waters to visit and inspection in order to prevent any violation of the laws and regulations against smuggling.

This rule may find application with respect to the trade in fire-arms, munitions of war, and alcoholic drinks intended for Africa. Since experience has proved that the importation of such goods greatly imperils the security of the States which exercise rights of sovereignty or protection in Africa, it was agreed that, independently of the agreement concluded under the general Act of the Conference of Brussels of July 2, 1890, any State could by law forbid the transportation of such merchandise in the territorial waters of its African possessions and declare it smuggling and punish it as such. 271. The right of control and patrol of a State over its territorial waters may be properly exercised by subjecting merchant vessels suspected of carrying on smuggling to the visit of its war vessels or those specially designated for the purpose, and by applying the penalties provided by law (fines, confiscation of merchandise, etc.) to those found guilty of that offense.

The application of police measures and regulations shall always be permissible in the territorial waters of any State for the protection of its fishing interests and the observance of its customs laws.

A special law is indispensable for the exercise of such a right; because the application of penalties is not, in principle, admissible without a statute. Great Britain has a special law on this matter, that of August 28, 1833, which prohibits the violation of customs regulations. Under this law, merchant vessels found in British territorial waters are considered as suspects whenever they deviate from their route to their port of destination and can not justify such deviation by the condition of the weather and sea. They may be liable to penalties to the extent of confiscation of their merchandise, when they fail to comply with the notice to retire within 48 hours. In France, they apply the law of Germinal 4, year 2, article 7, title 11, which provides the penalty of confiscation of goods whose importation into France is prohibited, when these goods are found on board a merchant ship in French territorial waters, and which inflicts, besides, a fine of 500 francs on the captain of such vessel.

EXTENT OF THE TERRITORIAL SEA.

272. By customary law, territorial waters extend 3 sea miles from low water mark.

Nevertheless, we must recognize the common advantage in extending the territorial sea to at least 5 miles from the coast, so as more effectively to safeguard the rights of the littoral States.

The 3-mile limit is at the present time considered as generally fixed to determine the maritime zone over which a State may exercise its jurisdiction. See Calvo, Droit international public, § 355, 4th ed., 1887. “This zone," he says "is the limit which has been generally recognized by international conventions, notably by article 1 of the treaty of October 20, 1818, between Great Britain and the United States; by the Belgian law of June 7, 1832; by articles 9 and 10 of the treaty of August 2, 1839, and Article 1 of the treaty of November 11, 1867, between France and Great Britain."

To-day, the tendency is to extend the limit of the territorial sea especially with a view to insuring a better defense, the necessities of which have grown greater by reason of the progress in the means of attack and range of guns. Nevertheless, an international convention is needed to modify customary law. The Government of the Netherlands, in 1895, took the initiative in negotiating for an extension of the territorial sea to 6 miles from the coast. This was also the proposition advanced by the Institute of International Law in 1894 at the Paris session.

273. No State can by a special law extend the territorial sea beyond the limits established by customary law.

If, however, a State has proclaimed by municipal law that its territorial waters in the matter of the exercise of police and fishing jurisdiction, are to be considered as extending beyond 3 miles (6 at the utmost) and if the other States have not protested, the State's exercise of police jurisdiction and supervision of customs within the limits thus fixed cannot be disputed, unless a court of arbitration decides to the contrary.

Certain States have, in fact, extended the limits of the territorial sea from the point of view of the dominion which they claim over it. Great Britain proclaims and exercises its right of supervision to 12 miles from the coast. In France, the zone for the supervision of customs was carried to 2 myriameters · by the law of March 27, 1817 (Art. 13). We cannot admit, however, that the rules of international law can be modified by a unilateral act.

Nevertheless, we may observe that, on the one hand, the majority of publicists recognize the necessity of extending the territorial sea to at least 5 sea miles from the coast, and that, on the other hand, certain States, in fact, have by municipal law enlarged the limits of their territorial waters for the exercise of their jurisdiction. Under such circumstances of fact, it

would seem that, although not admitting that a State may assume the right to modify by a municipal law the rule of international law relating to the width of the territorial sea without exposing itself to the just protests of the other powers, yet it may be said that everyone may rely upon the common opinion of writers and on fact, to practice what others practice. In this way, the adoption of a different customary law as regards the extent of the territorial sea may gradually be arrived at, or else, on account of the just protests of third powers, the necessity will arise of referring to the decision of an arbitral court the question as to whether or not a State may assign a greater extent to its territorial sea for the exercise of its jurisdiction. Of course, through its award, teh Court would lay down a rule obligatory on all the States until such time as they may agree to establish rational rules for determining the extent of the territorial sea and their reciprocal rights in relation to it.

274. The territorial sea can be extended by a treaty designed to regulate the application of customs laws and the reciprocal right of supervision and control of the respective governmental authorities of the contracting States.

Such conventional extension should be deemed operative only between the contracting parties.

See the Anglo-American treaty of October 20, 1818, those between France and Great Britain of August 2, 1839 (arts. 9 and 10), and November 11, 1867 (art. 1), and the treaty between France and Mexico of November 27, 1886, by which it was agreed to extend respectively the territorial sea to 20 kilometers. Compare: Ortolan, Règles internationales et diplomatie de la mer, 1864, livre II, ch. VIII, v. I, p. 159. dier-Fodéré, Droit internat. public, v. II, § 633; Bonfils, op. cit., § 492. Cf. Oppenheim, International Law, v. I, 2d ed.. pp. 235 et seq., §§ 176–197.

Pra

275. As regards bays, the distance of 3 sea miles shall be reckoned from a straight line drawn across the bay where its shores converge to a distance of 6 marine miles.

JUST LIMITATIONS OF THE RIGHT OF DOMINIUM.

276. The eminent domain which every State has in its territorial waters can not be considered as a right of property. Since its object is the security and the defense of the general and individual interests of its citizens, it must be limited by its purpose.

277. Every State is bound to exercise its right of domain over territorial waters in such a manner as not to injure the rights of vessels who make a peaceful and harmless use of such waters for the purposes of navigation. It is a universal right, in times of peace. freely to traverse territorial waters in order to reach the open sea.

278. No sovereign has the right to subject merchant vessels crossing territorial waters to the payment of fees, under any form whatever. for the right of transit or navigation, nor by law or regulation render transit oppressive and difficult.

CRIMINAL JURISDICTION OVER TERRITORIAL WATERS.

Page 191.-306. It is incumbent upon States to determine in common accord the extent of territorial waters with respect to criminal jurisdiction.

In principle, the complete assimilation of territorial waters to the landed territory, from the point of view of the authority of criminal law over offenses committed in the said waters and the resulting criminal jurisdiction, should not be admitted.

307. In the absence of an international agreement, every State can by law establish rules for the exercise of criminal jurisdiction over offenses committed within its territorial waters.

In Great Britain, this matter is regulated by a law of 1878 (An act to regulate the law relating to the trial of offenses committed on the sea within a certain distance of Her Majesty's dominions, 41 and 42 Vict., c. 73). Article 7 of this law reads: "And for the purpose of any offense declared by this Act to be within the jurisdiction of the Admiral, any part of the open sea within one marine league of the coast measured from low water mark shall be deemed to be open sea within the territorial waters of Her Majesty's dominions."

This law was enacted following the discussions arising out of the collision owing to negligent navigation of the German ship Franconia, at a distance of about three sea miles off the English coast. The killing of a sailor having been proved and charged against the captain of the vessel, the claim was made that the English law was applicable and that the High Court of Admiralty had jurisdiction of the case. At that time, that is in 1877, no statute relating to this matter existed in Great Britain and the discussions involved the general principles of law. Phillimore, a judge of the High Court, held, with much reason, that from the point of view of criminal jurisdiction, territorial waters could not be assimilated in all matters to the landed territory. [See Regina v. Keyn, 2 Ex. D. 63.]

At the time of the debates on the law of 1878, the principle which it was intended to sanction was bitterly opposed both in the House of Lords and in the House of Commons. In the latter, the law was opposed by Sir George Bowyer. Phillimore persistently held that the British Parliament could not establish a criminal jurisdiction in opposition to international law, and that was the opinion held by the Lord Chief Justice. 308. It must always be considered in conformity with the most just prinicples of international law to admit the criminal jurisdiction of the State over offenses committed in territorial waters within. a mile from the coast measured from low-water mark, and beyond

that limit, to assimilate territorial waters to the high sea from the point of view of criminal jurisdiction.

This rule is based on the idea and ultimate purpose of the penalty. The political alarm and damage which justify the penal sanctions necessary for the legal protection of violated rights, cannot arise from acts which are committed at a great enough distance from the coast to exclude any idea of threatening the public safety of the territory of the State.

TERRITORIAL WATERS.

Page 416.-1039. Territorial waters, that is to say, those contained between the shores of a State and the line that constitutes its maritime or river boundary, must be deemed to be in the juridical possession of the territorial sovereign. That sovereign has the right in these waters to regulate navigation, transit, the landing of national and foreign vessels according to the established laws and regulations, and to insure their enforcement, without, however, preventing or obstructing the peaceful use of the said waters.

See with respect to the right of dominion of the sovereign State over territorial waters, rules 265 et seq.; on criminal jurisdiction, see rules 306 et seq.

GROTIUS: De Jure Belli ac Pacis. Amsterdam, 1646.1

Book II, Chapter III, section 13, pages 129-130.-Mere control of a part of the sea without any other right of possession could easily have been assumed; and I do not think that that law of nations, of which we have spoken, is a hindrance to such procedure. . . . Now the lordship over a portion of the sea is acquired in the same way as other lordships-that is, as we have said above, by way of persons and by way of territory. By way of persons, when a fleet, which is a sea army, is established somewhere in the sea; by way of territory, in so far as those who navigate in that part of the sea nearest the land can be held in restraint from the land, no less than if they were found upon the land itself.

HALL: A Treatise on International Law. Seventh edition, 1917.

Page 130.-It may be worth while to notice, though the fact is an obvious result of the position occupied by a protecting state, that the territorial waters of the protected territory are, as between the protecting state and foreign countries, under the control of the former

1 A photographic reproduction of this 1646 edition appears in the CLASSICS OF INTER NATIONAL LAW, Washington, 1913.